Examples [European Regulation in matters of international successions]

Examples

Example :

A French national residing in Switzerland has died.

The notary in charge of settling the succession must, pursuant to Article 21^[1] apply the Swiss law of the last habitual residence of the deceased.

All the conflict of law rules contained in the Regulation will apply in relations with third States.

Such is the case of

Article 21

A Belgian residing in Canada has died. It is the Belgian law of his last habitual residence that must apply.

Article 22

A Frenchman residing in New York dies there after opting for the application of French law to his succession. This choice of law must produce its effects provided that it complies with the conditions set out in Article 22^[2].

It is of no account that “the chosen law does not provide for a choice of law in matters of succession” as pointed out in recital 40 in the Preamble to the Regulation^[3]..

Article 27

In 2013, a French national residing in Mexico established a holograph will. He returned to France in 2016. He died there.

Although French law applies to his -succession, the substantive validity of his will must be assessed pursuant to Mexican law and the formal validity of the will shall be subject to Article 27^[4] of the Regulation (unless the Hague Convention of 5 October 1961 on the law applicable to the form of testamentary dispositions applies).

Article 21

A Swiss national obtained a waiver of their succession from his children in return for compensation. He decided to retire to Barcelona. He died there.

Pursuant to Article 21^[1], Spanish law applies to the settlement of his succession. But the Swiss law of his residence on the day the agreement was established applies to the validity of that agreement.

Notes

Article 21
General rule
1. Unless otherwise provided for in this Regulation, the law applicable to the succession as a whole shall be the law of the State in which the deceased had his habitual residence at the time of death.
2. Where, by way of exception, it is clear from all the circumstances of the case that, at the time of death, the deceased was manifestly more closely connected with a State other than the State whose law would be applicable under paragraph 1, the law applicable to the succession shall be the law of that other State.
Article 22
Choice of law
1. A person may choose as the law to govern his succession as a whole the law of the State whose nationality he possesses at the time of making the choice or at the time of death.
  A person possessing multiple nationalities may choose the law of any of the States whose nationality he possesses at the time of making the choice or at the time of death.
2. The choice shall be made expressly in a declaration in the form of a disposition of property upon death or shall be demonstrated by the terms of such a disposition.
3. The substantive validity of the act whereby the choice of law was made shall be governed by the chosen law.
4. Any modification or revocation of the choice of law shall meet the requirements as to form for the modification or revocation of a disposition of property upon death.
Point 40 of the recital of the Regulation
- A choice of law under this Regulation should be valid even if the chosen law does not provide for a choice of law in matters of succession. It should however be for the chosen law to determine the substantive validity of the act of making the choice, that is to say, whether the person making the choice may be considered to have understood and consented to what he was doing. The same should apply to the act of modifying or revoking a choice of law.
Article 27
Formal validity of dispositions of property upon death made in writing
1. A disposition of property upon death made in writing shall be valid as regards form if its form complies with the law:
  - a) of the State in which the disposition was made or the agreement as to succession concluded;
  - b) of a State whose nationality the testator or at least one of the persons whose succession is concerned by an agreement as to succession possessed, either at the time when the disposition was made or the agreement concluded, or at the time of death;
  - c) of a State in which the testator or at least one of the persons whose succession is concerned by an agreement as to succession had his domicile, either at the time when the disposition was made or the agreement concluded, or at the time of death;
  - d) of the State in which the testator or at least one of the persons whose succession is concerned by an agreement as to succession had his habitual residence, either at the time when the disposition was made or the agreement concluded, or at the time of death; or
  - e) in so far as immovable property is concerned, of the State in which that property is located.
  The determination of the question whether or not the testator or any person whose succession is concerned by the agreement as to succession had his domicile in a particular State shall be governed by the law of that State.
2. Paragraph 1 shall also apply to dispositions of property upon death modifying or revoking an earlier disposition. The modification or revocation shall also be valid as regards form if it complies with any one of the laws according to the terms of which, under paragraph 1, the disposition of property upon death which has been modified or revoked was valid.
3. For the purposes of this Article, any provision of law which limits the permitted forms of dispositions of property upon death by reference to the age, nationality or other personal conditions of the testator or of the persons whose succession is concerned by an agreement as to succession shall be deemed to pertain to matters of form. The same rule shall apply to the qualifications to be possessed by any witnesses required for the validity of a disposition of property upon death.